Defendants are entitled to judgment on this claim as a matter of
Racially Hostile Work Environment
Plaintiff has not come forward with facts showing that the
alleged hostile actions or altered work conditions were
sufficiently severe and pervasive to sustain his claims premised
on a racially hostile work environment.
The existence of an actionable hostile work environment is
analyzed, for Section 1981 and 1983 purposes, under principles
consistent with those applied in Title VII cases. See Abouzied
v. Roy H. Mann Jr. H.S., No. 78, No. 97-CV-7613, 2000 WL
1276635 at *3, n. 1 (E.D.N.Y. August 30, 2000) (citing Hardin
v. S.C. Johnson & Son, Inc., 167 F.3d 340, 347, n. 2 (7th
Cir.), cert. denied, 528 U.S. 874, 120 S.Ct. 178, 145 L.Ed.2d
150 (1999)) (Section 1981 claims are analyzed under Title VII
law); Jemmott, 85 F.3d at 67 (courts regularly utilize Title
VII law when considering Section 1983 equal protection claims).
To sustain a hostile work environment claim, the plaintiff must
demonstrate that the workplace was "permeated with
discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of [his] work environment."
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct.
2399, 91 L.Ed.2d 49 (1986).
Whether the discrimination is "severe or pervasive" depends on
"(1) the frequency and severity of the discriminatory conduct;
(2) whether the conduct was physically threatening or
humiliating; (3) or a `mere offensive' utterance; (4) whether
the conduct reasonably interfered with [P]laintiff's work, and
(5) the nature of the psychological harm suffered by
[P]laintiff, if any." Turner, 181 F. Supp.2d at 132 (citing
Harris v. Forklift Systems, 510 U.S. 17, 21-22, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993)). See Hill, 181 F. Supp.2d at 320-21.
These factors should be considered cumulatively. Raniola, 243
F.3d at 617 (quoting Richardson v. New York State Dep't of
Corr. Service, 180 F.3d 426, 437 (2d Cir. 1999)). Plaintiff
must also show that the environment was both objectively and
subjectively hostile.*fn10 Raniola, 243 F.3d at 620.
Furthermore, Plaintiff must show that the working environment
actually constituted discrimina[tion] . . . because of [race].
Hill, 181 F. Supp.2d at 321 (quoting Ricks v. Conde Nast
Publ'n, Inc., 6 Fed.Appx. 74, 2001 WL 27385, at *3 (2d Cir.
2001) (citations omitted)).
Viewing the evidence in the light most favorable to Plaintiff,
Plaintiff has failed to meet his burden of demonstrating that
his supervisor, Iannacone, or Dr. Bergman (collectively or
individually) subjected him to a hostile work environment.
The Court must first address the temporal scope of the
allegations that may be taken into account in determining
whether Plaintiffs evidence is sufficient to withstand
Defendants' motion for summary judgment. Defendants argue that
all alleged conduct outside of the three-year statute of
limitations period for Section 1983 and 1981 actions must be
disregarded. Although Defendants' position is generally
consistent with most of the relevant case law under Section 1981
and 1983,*fn11 the Supreme Court's June 2002
decision in Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) casts doubt upon
this proposition insofar as Plaintiff asserts a hostile work
environment claim. In Morgan, the Court addressed in the Title
VII context, the question of whether acts allegedly comprising a
hostile work environment could be taken into account to the
extent those acts fell outside Title VII's 180- or 300-day
limitations period for the filing of a charge with the federal
Equal Employment Opportunity Commission. Finding that a hostile
work environment is itself an "unlawful employment practice"
that occurs over a series of days or perhaps years and that "the
incidents compromising a hostile work environment are part of
one unlawful employment practice," the Court held that,
"[p]rovided that an act contributing to the claim occurs within
the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of
determining liability." Id., 536 U.S. at ___, ___, 122 S.Ct.
2061, 153 L.Ed.2d 106, 70 U.S.L.W. at 4528-29. As noted above,
Title VII standards for the assessment of hostile work
environment claims generally govern the analysis of such claims
under Sections 1981-1983.
If, for Title VII purposes, a hostile work environment claim
is deemed to encompass all conduct that can be proven part of
the same unlawful employment practice whether or not each
instance of such conduct occurred within the relevant filing
limitations period, it stands to reason that, as long as some of
the conduct occurred within the relevant limitations period, the
statute of limitations applicable to Section 1981 and 1983
claims should not bar consideration of all the conduct claimed
to constitute a hostile work environment in a claim brought
pursuant to those statutory provisions. Here, there is no
dispute that some of the conduct complained of allegedly
occurred as late as 1998 — well within the three-year period.
The Court has therefore considered all of Plaintiffs allegations
in determining whether Plaintiff has alleged a sufficient
factual basis for the existence of a racially hostile work
environment to preclude summary judgment in Defendants' favor on
The bulk of Plaintiffs allegations as to Iannacone's conduct
are vague and conclusory. Plaintiff asserts that Iannacone made
racially offensive jokes but does not detail their content or
frequency, and provides only one example of subject matter — the
O.J. Simpson trial. Plaintiff asserts that Iannacone called him
a "boy" but the only specific language recounted is the alleged
remark "good boy" upon completion of assignments. "Petty
criticisms" of nonwhite workers and disparate work assignments
are alleged, but the only specific example given is of an
alleged 1993 difference in shift times and overtime eligibility.
There is only a generalized assertion of disparate enforcement
of lunch and break limitations. No specifics are proffered as to
the nature of the "special attention" allegedly paid to
Plaintiffs conduct after he returned to the World Trade Center
stockroom in 1998. Plaintiffs allegations do not demonstrate
that Iannacone's conduct was sufficiently "extreme to amount to
a change in the terms and conditions of employment." Faragher
v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141
L.Ed.2d 662 (1998) (Title VII is not intended to be a "general
civility code") (citation omitted).
Even accepting Plaintiffs allegations as true, Iannacone's
alleged actions do not rise to the level of being so frequent,
severe, threatening or humiliating as to rise to the level of a
hostile work environment claim. Holtz, 258 F.3d 62, 75
("simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
of employment.") (quoting Faragher, 524 U.S. at 788, 118 S.Ct.
2275); see also, Abouzied, 2002 WL 1276635 at *5 (supervisor's
discriminatory comment, unfair reprimands, and assigning
Plaintiff more difficult tasks were insufficient to establish a
prima facie case of discrimination). Although the Court
accepts as true for the purposes of this analysis Plaintiffs
assertions that he perceived the work environment as hostile on
account of race, the evidence he proffers is insufficient to
satisfy the objective prong of the hostile work environment
analysis — that the conduct was so severe and pervasive that a
reasonable person would find the environment hostile or abusive
on account of race. See Harris, 510 U.S. at 2122, 114 S.Ct.
367; Brennan v. Metro. Opera, 192 F.3d 310, 318 (2d Cir.
1999); Richardson, 180 F.3d at 440.
Plaintiffs evidence is insufficiently specific to enable a
jury to assess objectively the underlying conduct. The specific
instances complained of are not ones that could reasonably be
construed to have altered the conditions of Plaintiffs
employment, even taking into account the totality of the factual
circumstances as allegedly by Plaintiff. See, e.g., Snell v.
Suffolk County, 782 F.2d 1094, 1098 (2d Cir. 1986)
("proliferation of racially derogatory `literature' posted on
bulletin boards . . . photographs favorably portraying the Klu
Klux Klan . . . [and] a picture of a black man with a noose
around his neck" was sufficiently severe and pervasive to merit
a finding of a hostile work environment); Brown v. Middaugh,
41 F. Supp.2d 172, 188 (N.D.N.Y. 1999) (calling African-American
deputy "nigger," referring to Black inmates as "niggers," and
making Nazi salutes to inmates, were not sufficiently severe and
pervasive to create hostile work environment); Richardson, 180
F.3d at 439 (working conditions altered where, over the course
of the plaintiffs three and one-half year employment, a
supervisor "referred to Blacks as `apes or baboons' and stated
that African-Americans are `so dark you cannot see them anyway,'
one co-worker referred to plaintiff as a `light-skinned nigger,'
another called her `nigger,' yet another went out of his way on
one occasion to use the word nigger in her presence, others
circulated a joke that disparaged Blacks and referred to them as
`niggers,' while still others used the terms `spooks' and
`Buckwheats' to refer to African-Americans"); Williams v. New
York City Hous. Auth., 154 F. Supp.2d 820, 823 (S.D.N.Y. 2001)
(work environment found to be sufficiently severe and hostile
where two African-American employees alleged that their white
supervisor displayed noose in his office for three days until
one of the plaintiffs asked him to take it down).
Plaintiffs conclusory allegations, without more, are not
enough to sustain a hostile work environment claim based on
Iannacone's conduct. See Schwapp, 118 F.3d at 110 (district
court properly declined to rely on affidavits lacking any
specific instances of racially discriminatory conduct and that
were replete with conclusory allegations of a racially hostile
work environment). See also, Bryant v. Maffucci, 923 F.2d 979,
982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152,
116 L.Ed.2d 117 (1991) (motion for summary judgment will not be
denied on conjecture or assumptions); Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (Second
Circuit has consistently held that a plaintiff opposing a
summary judgment motion must provide evidence sufficient for a
fact finder to render a verdict in his favor); Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (unsupported
allegations do not create material issues of fact to preclude
Nor does Plaintiffs assertion that Dr. Bergman's alleged
part of the same hostile work environment provide a sufficient
factual basis for a finding that such an environment involving
race-based conduct by Iannacone existed. "To withstand summary
judgment, a `plaintiff must show that either a single incident
was extraordinarily severe, or that series of incidents were
sufficiently continuous and concerted to have altered the
conditions of [his] working environment.'" Whidbee v.
Garzarelli Food, 223 F.3d 62, 69 (2d Cir. 2000) (citations
omitted). Plaintiff has proffered no facts to show that alleged
actions of Dr. Bergman, who worked in an entirely different unit
and was not Plaintiffs supervisor, should be considered
concerted with those of Iannacone, or that there was any
continuity between the two men's conduct. Plaintiffs simply
asserts that "[t]he racially hostile atmosphere . . . carried
over to other employees of the Port Authority such as Dr. Scott
Bergman a clinical psychiatrist who worked at the office of
Medical Services." (Mack Aff. ¶ 8.) This conclusory assertion is
plainly insufficient to support a finding of continuous or
concerted action as between the two men to create a hostile work
As to whether Dr. Bergman's alleged actions, standing alone,
are sufficient to enable Plaintiffs hostile work environment
claim to withstand summary judgment, the answer must again be in
the negative. Plaintiffs allegations in this regard are again
conclusory — he asserts that Dr. Bergman was disdainful and
failed to provide him with counseling consistent with Plaintiffs
expectations, and just as summarily asserts that these
shortcomings were "clearly due to racism." (See Mack Aff. ¶¶ 9,
13, 17.) Similarly with respect to the alleged comment referring
to the temperature of the urine sample being similar that of a
dead person or an animal, only Plaintiffs subjective conclusion
that he "interpreted Dr. Bergman's remark about an `animal' as
racist" is proffered to support the assertion that Dr. Bergman's
conduct was part, or symptomatic of a hostile work environment.
There is no objective indicator of a basis for an inference of
racially discriminatory conduct. Plaintiffs evidence is thus
again insufficient, at this summary judgment stage, to frame an
issue of fact for the jury as to whether there was conduct
severe and pervasive enough to constitute a race-based hostile
Although Plaintiff also asserts that Dr. Bergman's allegedly
discriminatory conduct is part of a larger pattern at the Port
Authority, he has not provided evidence of such a pattern.
Plaintiffs deposition reveals that Dr. Bergman's "cold and
disdainful attitude toward [him]," which Plaintiff asserts "was
clearly due to racism" (Mack Aff. ¶ 9), consisted of Dr. Bergman
asking after Plaintiffs health and inquiring whether he had
relapsed into drug use. (Tr. 6/27/2000 Mack Dep. at 279, Defs.'
Ex. N to Notice of Mot.) Plaintiffs conclusory allegations of
discrimination do not create a material issue of fact for the
jury. See Ghose v. Century 21, 108 F. Supp.2d 373, 379
(S.N.N.Y. 2000) (plaintiffs conclusory allegations of
discrimination were insufficient to defeat employer's motion for
summary judgment). Moreover, Plaintiffs evidence is insufficient
to connect Dr. Bergman's actions with Iannacone's actions in any
sort of pattern of
discrimination that would provide a basis for holding the Port
Authority vicariously liable for the alleged conduct of the two
For all of the foregoing reasons, Defendants are entitled to
judgment as a matter of law on Plaintiffs hostile work
State Law Claims
Based on the same set of factual allegations, Plaintiff also
seeks relief pursuant to New York Executive Law section 296, et
seq. However, New York antidiscrimination laws do not apply to
the Port Authority because it is a bi-state agency created by
compact. See Evans, 192 F. Supp.2d at 281-82 (New York
antidiscrimination laws do not apply to the Port Authority or
its agents acting in their official capacity); Barbella v.
N.Y., N.J. Port Auth., No. 97 Civ. 8553, 1999 WL 1206692, at *4
(S.D.N.Y. Dec. 15, 1999) (New York Human Rights Law does not
apply to Port Authority, a bi-state agency); Rose v. Port Auth.
of New York & New Jersey, 13 F. Supp.2d 516, 523-24 (S.D.N.Y.
1998) (New York Human Rights Laws did not apply to Port
Authority because the Port Authority is a bi-state agency and
exempt from municipal regulation). Plaintiffs state law claims,
therefore, are dismissed.
For the foregoing reasons, the Court grants summary judgment
in favor of Defendants, dismissing Plaintiffs 42 U.S.C. § 1981,
42 U.S.C. § 1983, and state law claims.